CINCINNATI (Legal Newsline) - The U.S. Court of Appeals for the Sixth Circuit has affirmed a lower court's decision to dismiss a lawsuit against Franklin County, Ohio, by an inmate who claimed he was injured.

The case arises out of a class action against Franklin County, its sheriff Zachary Scott and 14 sheriff's deputies for allegedly using excessive force against detainees in the county jail and for allegedly violating the privacy of detainees through strip searches, according to court documents.

"Settlements were reached with all the plaintiffs other than Michael Reed, leaving Reed as the only detainee whose claims are presently before us," Sixth Circuit Judge Ronald Lee Gilman's opinion states.

Reed claimed deputies used excessive force against him, in violation of the Eighth and 14th Amendments to the U.S. Constitution, when they subdued him with a Taser while he was in custody.

He also claimed the county failed to train its deputies on the proper use of Tasers, thereby creating a policy and practice of abuse.

The defendants moved for summary judgment, with the individual defendants claiming qualified immunity and all defendants denying any constitutional violation.

"After determining that 'no rational fact finder could conclude that the defendant deputies acted with conscience-shocking malice or sadism towards Mr. Reed during either the Cell Incident or the Hospital Incident' the district court granted the defendants' motion," the judge's opinion states.

Reed was involved in a motorcycle accident in the 1990s, which caused him to suffer seizures. In August 2008, he had a seizure while walking down the street in Columbus and emergency personnel arrived and attempted to take him to the hospital, but he violently resisted and was taken into custody and charged with assaulting a peace officer.

The Franklin County Common Pleas Court found Reed not guilty by reason of insanity in December 2008 and ordered him committed to the Twin Valley Behavioral Healthcare Forensic Unit. However, because the Twin Valley facility did not have space for Reed, he was still at Franklin County Correctional Center II in January 2009.

On Jan. 29, 2009, Reed suffered a seizure in his cell and several sheriff's deputies entered the cell and attempted to handcuff Reed in order to transport him to a nearby hospital for medical treatment.

In their efforts to handcuff Reed, the deputies used a Taser on him twice. The entire incident is captured on video and neither party contested the video's admissibility or its completeness in portraying the relevant events.

Instead, the parties disputed whether the video shows that the deputies violated Reed's constitutional rights by using excessive force.

Later that day, after Reed was taken to the hospital, he lunged at a deputy and the deputy Tased him after several oral commands to lay back down.

Reed's claims arise out of these two incidents, according to court documents.

The deputies in this cas, used the Taser only after multiple warnings and multiple attempts to wrester Reed's arms behind his back, according to Gilman's opinion.

"We also do not believe that the deputies were constitutionally required to exhaust all possible alternatives before using a Taser," the opinion states. "Our dissenting colleague proposes that the deputies could have finished handcuffing Reed in front of his body or waited until Reed had recovered from the lingering effects of the seizure."

The first proposed alternative raises an impossible hypothetical -one which finds no support in the record, is not advocated by Reed himself, and cannot be determined from the video recording, according to the opinion.

"Indeed the recording shows that Reed began thrashing each time the deputies attempted to secure him, not that he was averse only to placing his hands behind his back. And requiring the deputies to wait until Reed had fully recovered from the seizure's lingering effects would have placed the deputies in an impossible Catch-22 situation: wait too long and risk being accused of the 'unnecessary and wanton infliction of pain' by their deliberate indifference to Reed's serious medical needs... or act too quickly and risk being charged with 'deliberate indifference towards the plaintiff's federally protected rights'" the opinion says.

"We decline to put the onus on the deputies to assess at their risk the seriousness of Reed's seizure in order to determine whether it warranted immediate medical treatment. Their decision to use a Taser to subdue Reed before taking him to the hospital might have been unwise, but it was not unconstitutional."

Circuit Judge Eric L. Clay disagreed with his colleagues, believing Reed's allegations are supported by convincing evidence: "The video recording of the events that transpired in Reed's jail cell and depositions in which the officers admit to thrice Tasing a non-violent individual in the immediate aftermath of a seizure."

According to the Franklin County Sheriff's Office policy, Taser guns are to be deployed "to gain control of a violent or dangerous inmate when attempts to subdue the inmate by conventional tactics have been or are likely to be ineffective or there is reasonable expectation that it will be unsafe for deputies to approach within contact range of the inmate," Clay's opinion states.

"The Jail Policy specifically states that Tasers should not be deployed upon persons who are restrained by a mechanical device such as handcuffs, leg irons, or a restraint chair," according to Clay's opinion.

"Because I view the incidents of January 29, 2009 as a single event--a seizure followed by three tasings (two in the jail cell and one in the hospital)--I believe that Reed's entire claim should proceed to a trier of fact," Clay states in his opinion.

"That there is no video recording of the so-called 'Hospital Incident' is not dispositive where the essential facts are undisputed: Shortly after Reed had suffered a seizure and received medical treatment for a head laceration, Dishong deployed his Taser gun on Reed while Reed was shackled to a hospital bed with leg irons. The trier of the facts is entitled to look at the event in context, and may determine that Dishong's deposition testimony that Reed 'lunged' at him is not credible."

Clay claims he would reverse the order of the district court and remand the case for further proceedings consistent with his opinion and he disagrees with the majority.

U.S. Court of Appeals for the Sixth Circuit case number: 13-3119

From Legal Newsline: Kyla Asbury can be reached at classactions@legalnewsline.com.